U.S. Department of 1200 New Jersey Avenue, SE

Transportation GENERAL COUNSEL Washington, DC 20590

Office of the Secretary 

of Transportation 

49 CFR §37.42(b) MARCH 9, 2012

QUESTION:

WHAT DOES THE RULE MEAN BY “EXISTING FREIGHT OPERATIONS?”

ANSWER:

• “Existing freight operations” on a track means that the track is used at the present time by 

regular freight rail traffic (i.e., revenue freight trains carrying goods or returning from 

delivering goods on behalf of shippers).

• Use of one or more tracks passing through a station and adjacent to a platform for other 

purposes (including but not limited to use of maintenance equipment by a freight railroad, the 

rare or token passage of freight trains, storage of ballast cars, movement of private passenger 

cars, or use of tracks to park freight trains overnight) does not constitute “existing freight 

operations” because these activities do not meet any plausible definition of “freight rail 

traffic.”

• In addition, where stations serve lines shared by passenger and freight traffic, and a freight 

train can bypass the track adjacent to the new or altered passenger platform via a gauntlet or 

other available track such that the freight train does not need to use the track adjacent to the 

platform, level-entry boarding is required. This means that even if freight trains could access 

a track adjacent to a passenger platform via a diverging track or other access point but does 

not have to do so because other tracks exist for freight passage through the station, level 

entry boarding is required. This also means that track adjacent to a passenger platform track 

that would be accessed via a diverging move off the main freight line would never be 

construed to carry freight rail traffic, and therefore, level-entry boarding is always required at 

such a platform. 

• If more than one platform exists in the station and the station has multiple tracks available to 

freight trains, only a platform adjacent to a track actually used for freight rail traffic would 

not need to provide level-entry boarding. Other platforms at the station must provide levelentry boarding.
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• The possibility that a freight railroad could use a track for freight rail traffic at some time in 

the future does not mean that there are “existing” freight operations.

• Where freight trains have not used a track passing through a station for a significant length of 

time (e.g., as noted in the Preamble to the rule, 10 years), the Department treats the situation 

as not constituting “existing” freight operations. However, entities should be aware that the 

example provided of “10 years” is as an illustration only. There may be occasions when a 

railroad not using tracks for freight train service over a period of less than 10 years would 

still constitute a significant length of time, depending on all the circumstances—e.g., when a 

freight customer no longer exists for a particular line. In such a case, the Department would 

regard the track as not being used for “existing” freight traffic on that track.

The General Counsel of the Department of Transportation has reviewed this document 

and approved it as consistent with the language and intent of 49 CFR Part 37.